United States v. Metropolitan District Commission

UNITED STATES OF AMERICAv.METROPOLITAN DISTRICT COMMISSION, et al. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC.v.METROPOLITAN DISTRICT COMMISSION

SCHEDULE SEVEN COMPLIANCE ORDER NUMBER 239

RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE

This is
the two hundred and thirty-ninth Compliance Order that has
issued over the course of this litigation. On June 15, 2015,
the Massachusetts Water Resources Authority (MWRA) filed its
(now) Biannual Compliance and Progress Report. The United
States and the Conservation Law Foundation have since
declined to file a response.

Schedule
Seven

Of
special note among the scheduled activities of the past six
months was a special court hearing convened on March 18,
2016. At the hearing, MWRA Executive Director Frederick A.
Laskey made a formal presentation of the Combined Sewer
Overflow (CSO) Annual Progress Report for 2015. The Report
marked the completion by the MWRA and the Boston Water and
Sewer Commission (BWSC) of the Reserved Channel sewer
separation project, and in partnership with the City of
Cambridge, the CAM004 sewer separation project. With these
two milestones met (on time and under budget), the
construction phase of the Long-Term CSO Plan is now finished.
The magnitude of this multi-decade achievement was
underscored by Director Laskey who noted that the 184
CSO-related milestones set by the court required the MWRA to
undertake or negotiate 35 separate construction projects, 125
design contracts, 82 oversight contracts, 10 planning and
technical support contracts, and 5 host community agreements.
The court will post this Order and the official transcript of
the hearing on the District Court's public web site as a
tribute to the thousands of people, including the ratepayers,
who in the apt words of Peter Shelley, speaking on behalf of
the Conservation Law Foundation, "collectively rolled up
their sleeves and made it happen."

As
Director Laskey's cautioned at the hearing, much work
remains to be done. Two milestones are still to be completed,
including the three-year post-construction monitoring program
and performance assessment that will begin in 2018. In the
meantime, over $600 million has been budgeted for upgrades
and improvements in the wastewater system between now and the
anticipated expiration of the consent decree implementing
Schedule Seven in December 0f 2020.

Combined
Sewer Overflow (CSO) Program

a.
CSO Water Quality Standards Variances

The
MWRA, the Massachusetts Department of Environment Protection
(DEP), and the United States Environmental Protection Agency
(EPA), are discussing the extension to 2019 of the existing
variances to the water quality standards for CSO discharges
to the Lower Charles River/Charles Basin and the Alewife
Brook/Upper Mystic River. The variances, which were first
approved by the DEP in 1998 and 1999, are expected to be
granted (as was agreed among the MWRA, DEP, and EPA in 2006
when the current Long-Term CSO Control Plan was approved by
the court). The MWRA believes that the forthcoming
performance assessment, in conjunction with modifications to
the existing water quality monitoring program, will enhance
the value of the data provided to support DEP's future
CSO and water quality standards determinations. DEP will hold
a public hearing on the requested variance extensions on July
27, 2016.

b.
CSO Post-Construction Monitoring

The
MWRA has begun planning the implementation of the CSO
post-construction monitoring program and performance
assessment that will begin in January of 2018 in compliance
with Schedule Seven.

c.
Mystic River Report Card

On May
31, 2016, the EPA issued its annual report card on the Mystic
River and its tributaries based on a three-year rolling
accumulation of testing data. Working with the Mystic River
Watershed Association, the EPA issued separate grades for
each of the 14 component areas of the watershed. The grades
show consistent improvement in water quality in most
segments, with the Mystic River and Chelsea River receiving
overall grades of A-. The D grade for Alewife Brook is
disappointing, but as yet the rolling averages have not
captured the benefits expected from the completion of the
CAM004 sewer separation project in December of 2015.

d.
Deer Island Cross Harbor Cable

The
MWRA has called the court's attention to a dispute that
has its origins in an order issued by my predecessor, Judge
Mazzone, in 1989, establishing an October 1990 deadline for
securing a suitable power supply for the then-proposed Deer
Island Waste Water Treatment Plant. The MWRA and the Army
Corps of Engineers question whether the (now) Eversource
Energy subsidiary, Harbor Electric Energy Company (the owner
of the cable), complied fully with the depth requirements of
the cable-laying permit issued by the ACoE. The Inner Harbor
dredging that will be undertaken by the Boston Harbor Deep
Draft Navigational Improvement Project will likely impact the
cable, which is critical to operations at Deer Island.
Because of the litigation-related aspects of the dispute, the
court will refrain from any comment on the issue.

Comments

The
court repeats its congratulations to the MWRA, the BWSC, the
City of Cambridge, and everyone else involved in achieving
completion of the construction phase of Long-Term CSO Control
Plan. I look forward to what I expect will be the final
celebratory hearing in January of 2021.

ORDER

Consistent
with the court's revised Scheduling Order, the MWRA will
submit Compliance Report No. 240 on or before December 31,
2016.

THE
COURT: Thank you all for be being here. Just two things to
begin. You will note from the case caption, 85-0489, that
this may be the oldest active case in the Federal District
Court in Massachusetts. (Laughter.)

THE
COURT: The second thing I would say is that this is probably
the first time something happy has happened in this courtroom
- (Laughter, )

THE
COURT: -- at least for everyone involved. I would like to
shortly begin the formal proceeding, and I realize we are
anticipating the presentation of the final report on the CSO
program, but a few minutes ago I received a lovely letter
from Mr. Shelley, which was not really addressed to me, but
addressed to those of you who are here in the audience.

Mr.
Shelley, if you will permit me, I am go to have Marsha read
the letter.

MR.
SHELLEY: Please.

THE
COURT: Marsha Zierk, as most of you know, has been my career
law clerk since I began literally as a federal judge, and she
has been at my side throughout the entire litigation of this
case, beginning in 2000 when I was first introduced to the
MWRA by Mr. Stevens, among others. And I do remember an
Easter Sunday when she stayed with me in the office trying to
finish the opinion before the 1st of April, having been
warned, I believe by Mr. Stevens, that every day of delay
after April 1 is going to cost the taxpayers a million
dollars in delayed construction charges. (Laughter.)

THE
COURT: Looking -- and I did take a sneak peak at the report
-- there is a map that shows the principal locations that the
program has touched. I believe, Mr. Laskey, that Marsha and
I, with your guidance, have been at every significant site
that I see on that map over the course of the last ten years.

So,
Marsha, would you begin the proceeding by reading Mr.
Shelley's letter into the record.

MS.
ZIERK: This is Docket No. 1831 in this case.

"I
am writing this letter as our final formal correspondence in
this matter. Conservation Law Foundation (CLF) filed rts
60-day notice letter pursuant to Section 505(a)(1) of the
Clean Water Act in the summer of 1983, expressing its
intention to bring federal legal action against the
Commonwealth of Massachusetts, the Metropolitan District
Commission, and the U.S. Environmental Protection Agency for
chronic violations of the Clear Water Act from Boston's
metropolitan sewerage system.

"I
can say with confidence that CLF had no idea at the time how
deep the underlying infrastructure and institutional problems
were that produced the desperate contamination situation we
all faced back then when 70 tons of raw sludge and 350, 000
mgd of poorly treated wastewater were being discharged into
the harbor every day. And looking today at the results of the
past 33 years' activities, it is easy to gloss over the
truly herculean, multi-rnstitutional effort that ultimately
materialized in response to that 60-day notice of violation.
Somehow, almost miraculously, the entire wholesale sewerage
and water system for metropolitan Boston has been rebuilt -in
many cases from scratch - while metropolitan life continued
on without a hitch on the surface.

"On
behalf of CLF's Board of Directors, membership, and
staff, I would like to put on the record CLF's profound
and lasting appreciation for the many efforts - small and
large - that produced such notable achievements: a clean and
thriving harbor; a new federal park featuring Boston harbor;
an unforeseeable explosion of public and private investments
along the harbor and in the City's future clean beaches
that residents and visitors to Boston can use with
confidence; and so many more wonderful outcomes.

"In
particular, we need to point out several prominent players in
this multi-decadal effort. First, the federal court rose to
the significant challenge of overseeing and prodding the
engineering, legal, and political processes along with great
wisdom and purpose. Boston is fortunate to have such a
capable judiciary and jurists. Second, we want to note our
appreciation to the Massachusetts Water Resources Authority,
an agency that arose from the ashes of the non-functional MDC
to become one of the preeminent water and sewerage agencies
in the world. The MWRA, its staff, and its boards showed what
was possible for a public works project in Massachusetts,
bringing the vital new systems on line on schedule and under
budget. CLF would also like to commend the U.S. Environmental
Protection Agency, who started off as a defendant in this
case but quickly became the lead plaintiff and ensured that
the system that was being built would get the job done and
quickly recognized and addressed the importance of addressing
the combined sewerage system overflows as well as the more
prominent outfalls at the end of the lines.

"Of
course, these institutions did nothing. It was the people in
the institutions who worked the impossibly long and difficult
hours on this project over the past 33 years who produced
these results. They are too numerous to mention. And while
the leaders involved in the case were all remarkable, their
efforts would have fallen flat if it weren't for the
engineers, accountants, law clerks, trades people, lawyers,
financiers, and the hundreds of other specialty walks of life
that collectively rolled up their sleeves and made it happen.

"Finally,
we would like to thank the thousands of business and
household ratepayers. This was not an easy 33 years for
anyone watching the ever-mounting water and sewer bills and
there is no question that many families and businesses
struggled to keep up. But the MWRA's ratepayers, who were
well served by the MWRA Advisory Board, supported the vision
for a better future for Boston harbor and its surroundings
and got the job done. Future generations will never fully
appreciate the scale of the effort that produced a clean
harbor but with continued dedication and vigilance, they will
enjoy the fruit of those labors.

"To
everyone involved and on behalf of all the beneficiaries of
those efforts that have no voice - the fish and the marine
mammals and all the other biological components of
Boston's now shining harbor - thank you.

"Sincerely,
"Peter Shelley" THE COURT: Thank you, Mr. Shelley.
You said everything that I could have said and said it
better.

Mr.
Ettinger, I believe you have a report that you would like to
present?

MR.
ETTINGER: I do, your Honor.

On
behalf of the Massachusetts Water Resources Authority, it is
with great pleasure and honor that I present the 20th and
final Combined Sewer Overflow Control Plan Annual Progress
Report.

May I
approach the bench?

THE
COURT: You may.

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